Argument recap: Judges get no respect

Posted Tue, October 9th, 2012 1:29 pm by Lyle Denniston

Analysis

Well into an argument before the Supreme Court Tuesday morning, Justice Stephen G. Breyer blurted out, in quite a loud voice, “WHY?” He immediately apologized for the boisterousness of the question. It was, though, entirely appropriate in the circumstances: he was protesting why nearly everyone seemed to have totally lost confidence in the capacity of federal district judges to use discretion wisely. Those judges, indeed, were almost totally orphaned in two arguments on how to handle a federal habeas case when the state prisoner involved may be mentally incompetent.

There were essentially two issues before the Justices in the related cases of Tibbals v. Carter (docket 11-218) and Ryan v. Gonzales (10-930): when should a federal court put a hold on a state prisoner’s habeas claim when a competency question arises, and how long should such a delay be? Justice Breyer may have been the only one on the bench who seemed to feel very strongly that this was something district judges could easily handle, and be trusted to do so. Most of the Court was pursuing some limits that it could impose on those judges.

The two cases reached the Court on state appeals protesting indefinite delays issued by lower courts in habeas cases in which state inmates were contesting their convictions for murder. In each case, because of claims of incompetence, the stay was to last until the inmate’s mental health had been sufficiently restored that he could cooperate with his lawyer in pursuing his claims. Lawyers for the states of Ohio and Arizona and a lawyer for the federal government contended that there should never be indefinite stays, no matter what the circumstances, and in no case should a stay be longer than, say, a year.

It did not take long in the hearings for it to become clear that most of the Justices were sympathetic to the idea of fairly strict limitations, and that the Court itself probably would never again do what it did in 1967 in the case of Rees v. Peyton: impose a stay in a death penalty case involving an incompetent individual, with the delay remaining in effect for some twenty-eight years, lifted only when the man died in prison. The case of Melvin Davis Rees hung over Tuesday’s session like an uninvited house guest.

It was not exactly clear why discretion in the hands of district judges had gotten such a bad reputation, although there was a hint in a comment by Justice Samuel A. Alito, Jr., who suggested that a lot of judges “don’t like the death penalty,” so why should the Court leave to their discretion the issue of stays for incompetency in these death penalty cases?

Five lawyers went to the lectern to argue the two cases, and two of them did make efforts to reclaim discretion for district judges, but in the mood, those efforts appeared to be as forlorn as they were valiant. And even when one of the other lawyers showed some sign of willingness to leave some discretion with the District Courts in some circumstances, that, too, was met with a thoroughly skeptical response. And when another of the lawyers suggested that she had no “hard-and-fast rule” on the outer limit of a stay in these cases, Chief Justice John G. Roberts, Jr., with some sarcasm, suggested that she at least try to give him “a loose and soft” answer.

If there were a consensus developing among the state lawyers, the Justice Department lawyers, and the Justices reaching for some certain limits, it would seem to be composed of three different rules for habeas judges: if there is a claim of incompetency, there should never be an indefinite stay of the proceedings to see if the inmate might regain competence; there should never be a stay when the issues before the judge are based solely on the already-made record in state court; and, in any case in which there might be new evidence that the inmate could supply if competent, the stay should be somewhere between six and nine months, and not ever more than a year.

If anything, the Justices who appeared to be leaning toward embracing those rules seemed more determined than some of the lawyers for the states and the federal government. Comments that a habeas judge should have some authority to order a “reasonable extension” of an already existing stay of the proceedings, or might be allowed to issue a stay when the prisoner, if regaining competence, “might provide” new evidence to help his case, drew sharp retorts from the bench about the open-endedness of such concepts, reinforcing the impression that what the majority was after were, indeed, precisely defined curbs on judicial discretion.

Justice Alito not only seemed fully ready to embrace such defined curbs, but also pressed the lawyers to say just when a time limit would run. He indicated that he was concerned that a defense lawyer with an incompetent client would simply let years run by before ever asking for a stay, and then get an indefinite one. Justice Anthony M. Kennedy picked up on that concern, and suggested that, perhaps, a defense lawyer might be required to forfeit the option of asking for a stay unless he did so promptly upon finding his client to be incompetent.

Justice Breyer seemed quite isolated as he commented that, in all kinds of situations faced by district judges, they make judgment calls that can be trusted. No one suggests, he commented, that a judge should be put under a time limit on how long a trial could be put on hold until an important but absent witness could be found. That is left to the judge to decide, Breyer said, so why should it be any different when a delay was imposed over an incompetency issue?

Along with Justice Breyer, Justices Elena Kagan and Sonia Sotomayor seemed concerned that the Court might be moving toward such restraints on judges in competency cases that it would affect cases where, in fact, the prisoner might well have a need to be able to consult with his lawyer in order to have the habeas proceeding be a fair one. In such a case, not wholly tied to an already-made state court record, the habeas applicant might be essential to the case, those Justices indicated. So they pressed the lawyers to say how the Court could define that category of cases to spare it from a too-tight limit on a stay.

In the Ohio case, the district judge concluded that the prisoner’s participation in the case was, in fact, essential. But the state disputes that, contending that this was a case that depended entirely upon the record made in the state court, so the prisoner would not be essential and the case could proceed without him or without waiting for him to regain mental health.

The lawyers for the states, Ohio’s Alexandra T. Schimmer and Arizona’s Thomas C. Horne, argued energetically for the three-layered limits on stays in competency cases, while the Justice Department lawyer, Ann O’Connell, argued — in spite of some resistance from the bench — for some greater degree of latitude for judges. Scott Michelman, who argued on behalf of Ohio death-row inmate Sean Carter, and Leticia Marquez, who argued on behalf of Arizona death-row inmate Ernest Valencia Gonzales, did what they could to try to salvage a measure of discretion for the judges. It was not an even contest.

Aug. 2015

In a conversation with Bill Kristol of The Weekly Standard, Justice Samuel Alito reflects upon (among other things) his arrival on the Court, recent First Amendment cases, the themes in his dissent in Obergefell v. Hodges, and his love for baseball.